Article 102 and Exclusivity Rebates in a Post-Intel World: Lessons from the Qualcomm and Google Android Cases

Abstract

The paper summarises the state of the law on exclusivity rebates after the Court of Justice’s ruling on Intel. It concludes that the Intel judgment sets out a framework for the appraisal of exclusivity rebates within the European Union but leaves a margin of appreciation for enforcing authorities in deciding which tools to use to prove an infringement. The recent decisions by the European Commission in Qualcomm (Exclusivity Payments) and Google Android provide good illustrations of which tools enforcement agencies can use to prove the capability of exclusivity rebates to foreclose competition.